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NAVY | DRB | 2003_Navy | ND03-01473
Original file (ND03-01473.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT

ex-MSSN, USN
Docket No. ND03-01473

Applicant’s Request
The application for discharge review was received on 20030912. The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general (under honorable conditions) and the reason for the discharge be changed to “RE code for reenlistment.” The Applicant requests a documentary record discharge review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040617. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was unanimous that the character and reason for discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “I am requesting an upgrade on my discharge status due to personel goal. I am planning on re enlisting in the Navy or entering the National Guard. I’ve been a over the road truck driver for 9 years, I’ve encountered a dozen different lifestyles which has expanded my out look. I’ve experienced different situations that I’ve used my experience and too endure. I’ve been productive in society all my life and want to better myself and do the most I can while I can.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Federal Inspection dated, March 14, 2003
Federal Inspection dated, February, 2003
Federal Inspection dated, February, 28, 2003
Safety Award dated, January 2, 2003
Federal Inspection dated, January 09, 2001
Safety Award dated, October 23, 1998
Self-Help Guild to discharge upgrading (1-14 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR(DEP)      910531 - 910624  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 910625               Date of Discharge: 931124

 Length of Service (years, months, days):

         Active: 02 02 27
         Inactive: 00 00 00

 Age at Entry: 21                          Years Contracted: 4

 Education Level: 12                        AFQT: 51

 Highest Rate: MS3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (2)    Behavior: 3.40 (2)                OTA: 3.80

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, AFEM, SSDR

 Days of Unauthorized Absence: 63 days

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

910625:  Applicant briefed on Navy's policy of drug and alcohol abuse.

 930416:  Retention Warning: Advised of deficiency (provoking speeches or gestures) notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930417:  NJP for violation of UCMJ, Article 117 Provoking speeches or gestures.
         Award: Forfeiture of $100.00 per month for 1 months, restriction and extra duty for 10 days.

930809:  Applicant went on unauthorized absence at 0700 on 930809.

931011:  Applicant was apprehended by civil authorities at 1200 on 931011.

931011:  Applicant was returned to military control at 1420 on 931011.

931029:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
         Award: Forfeiture of $500.00 per month for 1 months, restriction and extra duty for 45 days, reduction to MS3. No indication of appeal in the record.
931105:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidence by absent without leave (30 days or more).
931105:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
931108:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to absent without leave (30 days or more). Commanding Officer’s comments: I recommend that a MSSN M_ (Applicant) be separated with a other than honorable discharge by reason of misconduct.

931115:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19931124 under other than honorable conditions for misconduct due to absent without leave (30 days or more) (A). The Board presumed regularity in the conduct of governmental affairs (B). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

Issue 1. T he NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Characterization of service as other than honorable is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. The applicant’s service was marred by the award of non-judicial punishment (NJP) on 2 occasions for violations of the Uniform Code of Military Justice (UCMJ) to include articles 86 and 117. An upgrade to honorable would be inappropriate. Relief is therefore denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide additional documentation to support any claims of post-service accomplishments or any other evidence relating to his discharge at that time. Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective
05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT.

B. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT
If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Directive 1332.28 and other Decisional Documents by going online at “ afls14.jag.af.mil ”.
The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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